GIBSON DUNN

GIBSON DUNN
Office of Chief Counsel
Division of Corporation Finance
July 17, 2013
Page 3
BASIS FOR EXCLUSION
We hereby respectfully request that the Staff concur in our view that the Proposal may
properly be excluded from the 2013 Proxy Materials pursuant to Rule 14a-8(i)(7) because the
Proposal deals with matters relating to DeVry's ordinary business operations.
ANALYSIS
The Proposal May Be Excluded Under Rule 14a-8(i)(7) Because The Proposal Deals
With Matters Relating To DeVry's Ordinary Business Operations.
We believe that DeVry may exclude the Proposal pursuant to Rule 14a-8(i)(7) because it
deals with matters relating to DeVry's ordinary business operations-in particular, it deals
with DeVry's customer (student) relations, product quality and pricing decisions, and it seeks
to "micro-manage" DeVry.
Rule 14a-8(i)(7) permits DeVry to omit from its proxy materials a shareholder proposal that
relates to its "ordinary business" operations. According to the Commission's release
accompanying the 1998 amendments to Rule 14a-8, the term "ordinary business" "refers to
matters that are not necessarily 'ordinary' in the common meaning of the word," but instead
the term "is rooted in the corporate law concept providing management with flexibility in
directing certain core matters involving the company's business and operations." Exchange
Act Release No. 40018 (May 21, 1998) (the "1998 Release"). In the 1998 Release, the
Commission stated that the underlying policy of the ordinary business exclusion is "to
confine the resolution of ordinary business problems to management and the board of
directors, since it is impracticable for shareholders to decide how to solve such problems at
an annual shareholders meeting," and identified two central considerations that underlie this
policy. The first was that "[c]ertain tasks are so fundamental to management's ability to run
a company on a day-to-day basis that they could not, as a practical matter, be subject to
direct shareholder oversight." The second consideration related to "the degree to which the
proposal seeks to 'micro-manage' the company by probing too deeply into matters of a
complex nature upon which shareholders, as a group, would not be in a position to make an
informed judgment." !d. (citing Exchange Act Release No. 12999 (Nov. 22, 1976)).
A shareholder proposal being framed in the form ofa request for a report does not change the
nature of the proposal. The Commission has stated that a proposal requesting the
dissemination ofa report may be excludable under Rule 14a-8(i)(7) if the subject matter of
the report is within the ordinary business of the issuer. See Exchange Act Release No. 20091
(Aug. 16, 1983). In addition, the Staffhas indicated that "[where] the subject matter ofthe
additional disclosure sought in a particular proposal involves a matter ofordinary